Om Prakash Hans vs Col.P. N. Pandey & Anr.
2013 Latest Caselaw 5197 Del

$
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 Date of Decision: 13th November, 2013

+     CRL.REV.P. 760/2010
      OM PRAKASH HANS                            ..... Petitioner
               Through: Mr. Shashi Shankar, Advocate.

                        versus

      COL.P. N. PANDEY & Anr.                        ..... Respondents
                     Through:         Mr. Hasan Anzar, Advocate for R-1.
                                      Mr.Kshitij Mittal, Advocate for R-2.

+     CRL.REV.P. 761/2010
      OM PRAKASH HANS                                     ..... Petitioner
                     Through:         Mr. Shashi Shankar, Advocate.

                        versus

      Col.P.N. PANDEY & Anr.                               ..... Respondents
                     Through:         Mr. Hasan Anzar, Advocate for R-1.
                                      Mr. Kshitij Mittal, Advocate for R-2

+     CRL.REV.P. 762/2010
      OM PRAKASH HANS                                     ..... Petitioner
                     Through:         Mr. Shashi Shankar, Advocate.

                        versus

      COL.P.N. PANDEY & Anr.                              ..... Respondents
                    Through:          Mr. Hasan Anzar, Advocate for R-1.
                                      Mr. Kshitij Mittal, Advocate for R-2.

                        AND

+     CRL.REV.P. 763/2010
      OM PRAKASH HANS                                     ..... Petitioner
                     Through:         Mr. Shashi Shankar, Advocate.

                        versus

      COL.P.N. PANDEY & Anr.                               ..... Respondents


Crl. Rev. P. 760/2010                                                   Page 1 of 7
                          Through:    Mr. Hasan Anzar, Advocate for R-1.
                                     Mr. Kshitij Mittal, Advocate for R-2.

      CORAM:
      HON'BLE MS. JUSTICE SUNITA GUPTA

                         JUDGMENT

: SUNITA GUPTA, J.

1. Vide this common order, I shall dispose of four Criminal Revision

Petitions No.760/2010, 761/2010, 762/2010 & 763/2010 as all the four

revisions are between the same parties and substantially similar facts are

involved in all the cases except that same has been filed on the basis of

different dishonoured cheques. For the sake of convenience, the factual

background appearing in Criminal Revision Petition No. 760/2010 is taken

up.

2. A complaint under Section 138 r/w Section 142 of Negotiable

Instruments Act r/w Section 420 IPC was filed by the respondent/complainant

against the petitioner/accused, inter alia, on the allegation that the

complainant has rented a house situated at Ajay Kutir, 2034, Sector 7, Block

D, Faridabad by virtue of a registered agreement dated 3 rd May, 2005. It was

agreed that the accused shall be paying monthly rent of Rs.7,000/- per month.

In order to gain confidence and faith of the complainant, accused raised post

dated cheque bearing No. 435465 of Rs.7000/- dated 18th October, 2005 for

payment of rent for the month of October. On presentation, the cheque was

returned dishonoured on account of "insufficient funds". Legal notice dated

22nd April, 2006 was sent though registered post, thereby calling upon the

accused to make payment of cheque amount. Despite service, the accused did

not send any reply nor made payment of cheque within 15 days, as such, the

complaint was filed.

3. After summoning the accused, notice was served upon him.

Complainant examined himself. Accused was examined under Section 281

Cr. P.C. He also filed his affidavit and examined another witness Sh. Girja

Kant Pandey as DW-1 and he examined himself as DW-2.

4. After meticulously examining the evidence led by the parties, learned

Metropolitan Magistrate observed that the accused did not dispute the

correctness of the agreement dated 3rd May, 2005 (Ex. CW-1/A) entered into

between the parties. He also admitted that cheque of Rs.7,000/- per month

was given in respect of aforesaid agreement and that the agreement bears his

signatures. However, in his defence, he took another plea that one agreement

dated 6th April, 2005 was executed between him and the complainant and he

had issued 12 cheques regarding interest of the loan amount, which was

received by the accused from the complainant. However, the complainant

refuted that any such agreement was arrived at between the parties or that the

cheques in question were issued for interest as per terms of agreement dated

6th April, 2005. The accused did not dispute the service of notice upon him

after dishonour of the cheque and that he did not send any reply to the notice.

Despite service, he also did not make payment of the cheque amount. Under

the circumstances, it was held that the complainant had fully proved his case

and the defence of the accused, although not proved, is a kind of admission

that he had taken a loan from the complainant and in lieu of interest, the

cheques were given. The witness examined by him did not support his

version, as such, the accused was held guilty under Section 138 of NI Act. He

was sentenced to undergo simple imprisonment for a period of one year and

was also directed to pay fine of Rs.5000/- , in default of payment of the same,

he was to undergo simple imprisonment for 30 days. He was also directed to

pay compensation of Rs.20,000/- to the complainant within a period of two

months.

5. Feeling aggrieved by this order, the accused preferred the appeal. The

same was dismissed by the learned Additional Sessions Judge, Delhi.

6. Thereafter, the present revision petition has been filed. During the

course of arguments, learned counsel for the Revisionist did not challenge the

order of conviction, however, he only prayed for a lenient view on the ground

that he had already deposited the amount of compensation awarded to the

complainant and in fact, it is alleged that he has deposited more than the

compensation amount. He is the sole bread earner of the family and has the

responsibility to maintain his wife, son and daughter. Moreover, he remained

in jail for a period of one month. Reliance was placed on B. Chandramathi

vs. N. Prakash, (2012) 2 SCC 783 for contending that he be released on the

period already undergone.

7. Per contra, learned counsel for the complainant/respondent submitted

that the petitioner does not deserve any leniency. He referred to the conduct

of the petitioner for submitting that he has dragged the complainant in

litigation since the year 2005. Not only that, a false plea was taken by him

during the trial, which was disbelieved. The appeal was also dismissed. He

has also referred to his conduct after filing of the revision for submitting that

after he was released on bail, he failed to appear, as such, the petition was

dismissed for non-prosecution. After more than one year, he got the revision

restored. Already a liberal view has been taken, as such, no further leniency

is warranted.

8. So far as the conviction of the petitioner under Section 138 of NI Act is

concerned, rightly the same was not challenged during the course of

arguments, inasmuch as, the orders passed by the learned MM and affirmed

by the learned Additional Sessions judge does not suffer from any perversity

which calls for interference. As such, conviction of the petitioner is upheld.

9. As regards the quantum of sentence is concerned, B. Chandramathi

(supra) relied upon by the petitioner does not help him, inasmuch as, in that

case, the appellant was a widow who had the responsibility to maintain two

children and was earning her livelihood by making jowar rotis and selling

them. She also suffered from depression. She had undergone the sentence

for a period of about 2½ months before she was released on bail.

Considering the totality of facts and circumstances, the sentence already

undergone by her was treated as a sentence for the offence under Section 138

of the NI Act.

10. However, in the instant case, due to dishonour of cheque by the

petitioner, the complainant was constrained to file as many as four complaints

in the year 2006. Till date, the dispute has not been set at rest and the

complainant has been compelled to file the litigation. Moreover, after the

appeal was dismissed and this revision was filed, on the very first date, it was

brought to the notice of the petitioner that the revision is without merit.

Concurrent findings have been given by two courts below that the cheques in

question were issued for a liability. Even no reply to the notice of demand of

the complaint was given. In case, he intends to compromise with the

respondent then he should negotiate for compensating the respondent

adequately for making respondent rush to three Courts for the recovery of

such paltry sum. Thereafter, he was directed to deposit the compensation

amount with the Registrar General which was deposited and was ordered to

be released in favour of the respondent. On deposit of the amount, the

sentence was suspended and he was ordered to be released on bail.

Thereafter, the petitioner absented himself for subsequent dates and

ultimately, the revision was dismissed for non-prosecution on 24th January,

2012.

11. After a lapse of one year, the petitioner moved an application for

restoration of the petition, which was, however, allowed subject to costs. All

these goes to show that the petitioner has dragged the complainant in

litigation to the maximum. That being so, his conduct does not warrant any

leniency in the matter. However, keeping in view his family responsibility,

since he has been sentenced to undergo simple imprisonment for a period of

one year in each of the cases, it is ordered that this sentence of simple

imprisonment for a period of one year in all the four cases will run

concurrently. He is directed to deposit the fine, if not already deposited,

within a period of seven days. With these observations, all the revision

petitions stand disposed of.

12. Petitioner is directed to surrender before the learned Trial Court for

serving the sentence within seven days, failing which learned Trial Court to

take necessary steps to get the petitioner arrested for serving the remainder of

the sentence.

13. Copy of this order along with Trial Court record be sent back.

SUNITA GUPTA (JUDGE) NOVEMBER 13, 2013/rs